Disney, Libraries, and Copyright

Anyone who is even remotely familiar with Copyright Law in the United States has probably heard of the Mickey Mouse Protection Act, passed in 1998 largely due to the lobbying power of the Disney corporation. Anyone who has children, or is just a fan of the Disney oeuvre, is likewise aware of their “Disney Vault” system, wherein Disney releases one of their animated films on DVD for a limited time, and the withdraws it from retail sale for between 7 and 10 years.

The tension between copyright, libraries, and Disney’s Vault process is one that was brought to light for me in a series of tweets this past week from Gretchen Caserotti. She was struggling to replace films in their collection due to damage, loss, etc, and discovered that there are 22 Disney films that they can’t replace now due to Disney’s Vault. I hadn’t thought about this as a result of the Vault, and my first thought when the issue came up was Section 108 of the US Copyright Code…otherwise known as the Reproduction by Libraries and Archives section.

Librarians should all be familiar with Section 107, the Fair Use provision of US Copyright law. But I’m consistently surprised how few librarians know Section 108. It gives libraries specific abilities regarding copyright, and in regards to the Disney issue, I immediately thought of this section:

h) (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if â€”
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

There is also the section that allows for:

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if â€”
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

This section isn’t as useful, as (c)(2) prevents the circulation of copied DVDs, although it does appear to allow for patrons to view the DVD inside the library. And section (h) is limited to works in the last 20 years of their copyright term. The original Mickey Mouse cartoon, Steamboat Willie, was published in 1928, and Wikipedia reports that it should fall into the public domain in 2023. This would mean that, roughly, Disney media published between 1928 and 1935 would be subject to this rule. That range does not, unfortunately, cover any Disney films, as Snow White was released in 1937, and was the first major motion picture put out by Disney. But it would mean that in just 2 more years, in 2012, that Snow White _should_ fall into this category.

So, copyright nerds and librarians: is it legal for libraries to back up their DVD purchases, in a situation where it is a known fact that they will not be able to re-purchase them when they are needed? Here’s a situation where a legal copy of a DVD is owned, it is damaged or stolen, and the legal owner wants to buy a replacement…but can’t. Shouldn’t it be legal for a library to do this? Does Fair Use (section 107) give a library the right to make a copy in this situation?

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13 thoughts on “Disney, Libraries, and Copyright”

Minow and Lipinski cover this in “The Library's Legal Answer Book.” According to them, we're in something of a bind, as libraries are not allowed to make copies of an item *in anticipation* of it needing replacement or becoming obsolete. If a library is in a position to save a deteriorating copy, the authors argue that they can (see the previous page to the one linked), but only if the items are not made available to the public outside the facility. Unfortunately, what we should be able to do never really comes in to play. I would say that if things were as they should be, ol' Mickey would already be in the public domain.

Minow and Lipinski cover this in “The Library's Legal Answer Book.” According to them, we're in something of a bind, as libraries are not allowed to make copies of an item *in anticipation* of it needing replacement or becoming obsolete.

If a library is in a position to save a deteriorating copy, the authors argue that they can (see the previous page to the one linked), but only if the items are not made available to the public outside the facility.

Unfortunately, what we should be able to do never really comes in to play. I would say that if things were as they should be, ol' Mickey would already be in the public domain.

I can't believe that, Toby. I mean, how else can you possibly read the right to make a “three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen.” You can't very well make a copy of something AFTER it's been stolen or lost. Same with anticipated damage…it's not a reasonable interpretation of the law to copy _everything_ in belief that it may _someday_ be damaged, but it seems a very reasonable interpretation to believe that Children's DVDs are a special-case material that indeed shows more wear more quickly than other types. Especially since the Publisher of said DVDs explicitly makes known that the sales of said DVDs will be ceasing.

I can't believe that, Toby. I mean, how else can you possibly read the right to make a “three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen.” You can't very well make a copy of something AFTER it's been stolen or lost. Same with anticipated damage…it's not a reasonable interpretation of the law to copy _everything_ in belief that it may _someday_ be damaged, but it seems a very reasonable interpretation to believe that Children's DVDs are a special-case material that indeed shows more wear more quickly than other types. Especially since the Publisher of said DVDs explicitly makes known that the sales of said DVDs will be ceasing.

I couldn't agree with you more, Griffey. But the law – and particularly copyright law – has never really been one to either make sense or take the consumer's side. I put out a tweet to Mary Minow (coauthor of the book, author of the Library Law blog, and @librarylaw on Twitter) in the hopes that she'd weigh in.Obviously, I'm not a lawyer, so I'm punching above my weight here. Maybe I'm just a cynic, but I've seen too many instances where the Mouse has enacted swift and harsh punishment for even the slightest threats to its IP.

I couldn't agree with you more, Griffey. But the law – and particularly copyright law – has never really been one to either make sense or take the consumer's side. I put out a tweet to Mary Minow (coauthor of the book, author of the Library Law blog, and @librarylaw on Twitter) in the hopes that she'd weigh in.

Obviously, I'm not a lawyer, so I'm punching above my weight here. Maybe I'm just a cynic, but I've seen too many instances where the Mouse has enacted swift and harsh punishment for even the slightest threats to its IP.

I took Thomas Lipinski's”Copyright and the Library” ACRL webinar last year and asked him this very question. His reply, if I remember it correctly, was that if you need to make a copy of something that's been damaged or lost, you would find a copy through InterLibrary Loan and make your copy from that. He made a point of saying that you couldn't make a copy in anticipation of it being damaged, lost or stolen, unfortunately.

I took Thomas Lipinski's”Copyright and the Library” ACRL webinar last year and asked him this very question. His reply, if I remember it correctly, was that if you need to make a copy of something that's been damaged or lost, you would find a copy through InterLibrary Loan and make your copy from that. He made a point of saying that you couldn't make a copy in anticipation of it being damaged, lost or stolen, unfortunately.

What about the DMCA? If there's any circumvention of copy protection(and DeCSS is on every Disney DVD, so far as I'm aware, so there IS copy protection), it's illegal to make the copy, even if the content itself is not illegal to copy.I'm not a lawyer, and there could be some sort of library exception to that rule, but I'm not aware of it.

What about the DMCA? If there's any circumvention of copy protection(and DeCSS is on every Disney DVD, so far as I'm aware, so there IS copy protection), it's illegal to make the copy, even if the content itself is not illegal to copy.

I'm not a lawyer, and there could be some sort of library exception to that rule, but I'm not aware of it.